Texas Judge Draws Outcry for Allowing an Execution

The presiding judge of the Texas Court of Criminal Appeals is the target of a rising national outcry a month after turning away the last appeal of a death row inmate because the rushed filing was delayed past the court’s 5 p.m. closing time.

The inmate, Michael Richard, was then executed for a 1986 sexual assault and murder — the last person to die in Texas while the United States Supreme Court reviews the constitutionality of lethal injection.

The judge, Sharon Keller, has said she did not know that Mr. Richard’s defense lawyers in Houston were having computer problems when they asked the court for 20 more minutes to deliver their final state appeal to Austin hours before the scheduled execution on Sept. 25.

Without a definitive ruling from the state court, the lawyers could not properly appeal to the United States Supreme Court to block the execution.

Judge Keller, a Republican who was elected to her second six-year term last year, declined through her office this week to comment.

The court does not accept computer filings, although one of the court’s judges, Tom Price, said in an interview this week, “We’re reviewing all our procedures and policies.”

Other judges on the nine-member court, the state’s highest for criminal appeals, have said they were in the courthouse or available by phone and would have stayed late to hear the appeal if they had known about it.

On Wednesday, the National Association of Criminal Defense Lawyers, with 13,000 members nationwide, said it had just sent a complaint against Judge Keller to the Texas Commission on Judicial Conduct, the first judicial complaint the group had ever filed, said its president, Carmen D. Hernandez, of Washington.

“Whatever else happens in the United States of America, the courts are to remain open to litigants,” Ms. Hernandez said.

Also Wednesday, a petition calling for the court to accept electronic filings and signed by more than 300 lawyers — including two former Texas Supreme Court justices and other former judges, the head of the Texas Commission for Lawyer Discipline and partners of leading Texas law firms — was delivered in Austin by the Texas Civil Rights Project, a legal advocacy group.

This month at least 150 lawyers across Texas announced they were filing a complaint against Judge Keller with the State Commission on Judicial Conduct. Among the signers was a state district judge from Galveston, Susan Criss, who said, “The Code of Judicial Conduct requires judges to report activity by other judges that violates the code.”

The commission of six judges, two lawyers and five citizens investigates cases of judicial misconduct — defined as bringing discredit upon the judiciary or the administration of justice — and can impose sanctions ranging from additional education to suspension or a trial, but it cannot remove a judge.

The commission will not confirm that any judge is under investigation, said the group’s executive director, Seana Willing.

But David R. Dow, Mr. Richard’s lead lawyer, said Tuesday that a representative of the commission had interviewed him about the case several weeks ago.

Mr. Dow, a University of Houston law professor and a lawyer for the Texas Defender Service, a law clinic representing death row inmates, said, “Obviously Mr. Richard was executed more than a month ago, so none of this helps him.”

But Mr. Dow added, “I am surprised that there are so many people across such a broad terrain who seem to be outraged.”

The controversy stems from an expedited appeal that Mr. Dow and other lawyers rushed to file for Mr. Richard on the day of his scheduled execution — the same day the United States Supreme Court agreed to review whether lethal injection in Kentucky amounted to cruel and unusual punishment.

Mr. Dow said that in refocusing their appeal on lethal injection, they suffered a computer breakdown and tried to get the Court of Criminal Appeals to wait 20 minutes after closing time so the brief could be delivered by hand, but that they were turned down.

The Austin American-Statesman quoted Judge Keller on Oct. 3 as defending her decision to close, saying she had asked Mr. Richard’s lawyers why the court should stay open “and no reason was given.”

“I just said, ‘We close at 5.’ I didn’t really think of it as a decision as much as a statement,” the newspaper quoted her as saying.

Mr. Dow said they had pleaded computer failure, to no avail. Lacking a state ruling, the lawyers submitted an incomplete appeal to the United States Supreme Court, and Mr. Richard was executed. Two days later, the justices blocked another lethal injection in Texas, and there have been no executions since.